In a letter to the Tianhe District People’s Procuratorate in Guangdong Province, the lawyers for Guo Feixiong (郭飞雄, penname of Yang Maodong (杨茂东)), the rights defender who has been under criminal detention since August 8, argue that there is no legal basis for Guo’s detention, and therefore it should reject any application by the Tianhe police to formally arrest Guo. (See below for an English translation by Human Rights in China.)
The lawyers, Sui Muqing (隋牧青) and Lin Qilei (蔺其磊), issued their letter on September 13, the 37th day of Guo’s detention. The law limits the period of detention of an individual to 37 days without a formal arrest (Criminal Procedure Law, Article 89). Thus far, the police have not allowed Sui and Lin to meet with Guo.
The lawyers said in the letter that the police’s handling of Guo’s case has been unlawful from the very beginning, and outlined what they believe to be a series of procedural violations by the police, including their failure to produce a detention notification until nine days after the detention, and refusal to let the lawyers meet with Guo.
Guo is a vocal supporter of those calling for disclosure of officials’ assets. In March, he helped organize a signature campaign to urge the National People’s Congress to ratify the International Covenant on Civil and Political Rights, which China signed in 1998. Guo also supported the January 2013 protest by the staff of Southern Weekly against political interference in editorial matters.
The lawyers call Guo’s detention “a grotesque form of political retribution” for his rights defense activities, and “a violent suppression of citizens’ rights to express themselves.”
Legal Opinion Demanding the Non-Approval of Request to Formally Arrest Yang Maodong (Guo Feixiong)
by Sui Muqing and Lin Qilei, September 13, 2013
[Translation by Human Rights in China]
To the Tianhe [District] Procuratorate:
As Yang Maodong's defense lawyers, we solemnly convey the following legal opinions, as the criminal detention of Yang Maodong is ending. We sincerely ask your office to seriously consider and accept our requests.
1. There are serious violations of the law in the handling of this case by the Tianhe police authorities.
Yang Maodong was criminally detained on August 8, but his sister was not notified until she received on August 17 the criminal detention notification from the Tianhe police in Guangzhou. The Tianhe police's delay in producing a notification of Yang Maodong's criminal detention was clearly deliberate and seriously violated his right to meet with a lawyer in a timely manner. The Tianhe police's handling of the case was unlawful from the very beginning. They have, on several occasions, illegally refused to allow the defense lawyers to meet Yang Maodong, which constitutes a dual violation of Yang's lawful rights and the right of the defense lawyers to practice law, seriously violating the law again. We believe the Tianhe police is handling this case unlawfully: detaining Yang first and then fabricating incriminating evidence afterwards, in preparation for framing his guilt. We have reason to believe Yang's criminal detention is not being handled in an ordinary and lawful manner. Rather, it is the implementation of a political order.
2. Although we have to-date not met Yang Maodong nor seen any relevant legal documents, [it is our view that] there is clearly no legal basis for the police to criminally detain Yang Maodong for having made a public, political speech during the Southern Weekly incident. As a prominent dissident and a rights defense promoter, Yang's citizen activities have all been conducted in a public manner. Everyone knows about Yang Maodong's public activities during the Southern Weekly incident, which have been recorded and filmed. We believe all of Yang Maodong's activities were lawful and were exercises of his citizen rights; he did not “gather a crowd,” let alone “disrupt order in a public place.” The Southern Weekly incident was clearly a spontaneous assembly among the public and had nothing to do with Yang Maodong. Even if he was involved, “gathering a crowd” is lawful and does not constitute a criminal offense. The Southern Weekly incident occurred in an orderly manner, and there was no assault, destruction of properties, theft, robbery, arson, or other unlawful, criminal incidents. How can it be considered disruption of public order?
Yang Maodong went to the street to voice support for Southern Weekly out of a strong sense of social responsibility as a citizen, expressing his concern for freedom of speech and his indignation at the authorities' blatant interference with and suppression of freedom of the press. These were all appropriate exercises of his lawful rights as a citizen and do not constitute a threat to society.
4. “Disrupting social order” is an abstract and general act, and is a muddled concept resulting from China's technically crude legislative process. There are no concrete criteria for determining this act. Under the current legislative context, Yang Maodong can only be suspected of “gathering a crowd to disrupt order in a public place” if it can be proven that he first has “gathered a crowd” (“gathering a crowd” itself is lawful) and that the assembly carries clear threats to society. In reality, the Southern Weekly incident did not present any threats to society because of the presence of Yang Maodong or anyone else.
5. Subjectively speaking, the crime of “gathering a crowd to disrupt order in a public place” must be directly intentional. It is clear that all those present during the Southern Weekly incident, including Yang Maodong, participated in order to support Southern Weekly and express their concern and support for freedom of expression. No one present took advantage of the situation to engage in actions that are destructive and socially disruptive, such as assault, destruction of properties, theft, robbery, or arson, nor did they have the intention to do so. Even if we concede that a small number of people may have “ulterior motives” and wanted to disrupt social order, do the police have evidence to prove that? It was a widely recognized fact that the order at the scene of the Southern Weekly was fundamentally good. Accusation of criminal wrongdoing must be based on law and evidence, rather than on a hidden agenda.
6. Opponents of Southern Weekly also assembled during the incident and it was clearly planned and coordinated by others. Why is it that no one [in that camp] has been pursued for his or her legal responsibility? The police are selectively enforcing the law.
In light of the above, we believe that neither the subjective nor objective criteria are sufficient to support the suspicion that Yang Maodong has committed a crime. Yang Maodong's detention is clearly a grotesque form of political retribution and a violent suppression of citizens' rights to express themselves, and it violates the spirit of Article 35 of the Constitution. It also has no basis under the Criminal Law. Your honorable office should in accordance with the law, reject any application by the Tianhe police for Yang Maodong's formal arrest, and order the Tianhe police to promptly drop the case.
Yang Maodong's lawyers:
Sui Muqing, Guangdong Yaohui Law Office
Lin Qilei, Beijing Ruikai Law Office
Background on Guo Feixiong (Yang Maodong)
Guo Feixiong, a long-time rights advocate, is among dozens of rights activists and defenders who have been taken into custody in recent months in an intensified crackdown on those calling for greater government transparency and an end to corruption. Those detained include Xu Zhiyong (许志永), a proponent of the New Citizens’ Movement.
Guo is a writer, activist, and self-taught legal defender, who has written a number of articles and published books on China’s history, leadership, and social issues. He was previously sentenced to five years in prison, and suffered on-going harassment from the authorities, for articles he wrote in support of the well- known rights defense lawyer Gao Zhisheng.
Guo was formally arrested in September 2006 on the charge of “illegal business activity” (非法经营) in connection with his 2001 publication of Shenyang Political Earthquake (沈阳政坛地震), a book he edited that discussed a political scandal in Shenyang, Liaoning province. He was convicted in November 2007, sentenced to five years in prison, and fined 40,000 yuan.
Since his release in September 2011, Guo was subject to unrelenting surveillance and regularly seized or summoned and questioned about his activities. He nonetheless remains an active member of the human rights community, and has participated in key recent events such as the Wukan elections in 2012; investigations surrounding the death of Li Wangyang; and a signature campaign for independent candidate, Liu Ping, an advocate of the disclosure of officials’ assets who has been indicted on charges of “inciting subversion of state power.”
For more information on Guo Feixiong, see:
- Support Group Says Police Unlawfully Block Lawyers from Meeting with Guo Feixiong，August，August 27, 2013
- Guangzhou Activist Guo Feixiong Criminally Detained, August 19, 2013
- “Rights Defender Guo Feixiong Released from Prison; Remains Committed to Rights Work,” September 13, 2011
- “Rights Defender Subjected to Torture in Prison is Denied Access to Lawyer,” November 3, 2008
- “HRIC September Take Action: Put an End to Torture in China,” September 10, 2008
- “About the Individual: Guo Feixiong,” September 2, 2008
- “Spotlight: Letter to Human Rights in China about Recent Developments with Guo Feixiong,” September 2, 2008
- “Take Action for Guo Feixiong,” September 2, 2008
- “Children of Rights Defender Guo Feixiong Barred from School Enrollment,” June 30, 2008
- “HRIC Condemns Official Interference in Access to Justice in Rights Defense Cases: Hu Jia, Guo Feixiong,” April 21, 2008
- “Guo Feixiong's Wife Issues Statement on the Decision Not to Appeal,” November 27, 2007
- “HRIC Condemns Abuse and Torture of Chinese Legal Advisor,” December 31, 2007
- “Rights Defender Guo Feixiong Sentenced to 5 Years in Prison,” November 14, 2007
- “Wife Appeals for Guo Feixiong’s Release,” September 14, 2007
- “Further Investigation Delays Guo Feixiong Verdict,” July 26, 2007
- “Guo Feixiong Appeals to UN Special Rapporteur on Torture,” June 5, 2007
- “Rights Defender Guo Feixiong’s Trial Date Set,” May 21, 2007
- “Rights Defender Guo Feixiong Maintains Innocence, Is Formally Indicted,” May 15, 2007
- “Guo Feixiong Transferred Again Pending Trial,” April 2, 2007
- “Guo Feixiong’s Case Delayed, Transferred,” January 22, 2007